FAMILY COURT OF AUSTRALIA
| ATUK & ATUK & ANOR | [2016] FamCA 179 |
| FAMILY LAW – PROPERTY – adjustment of property interest – where appropriate to make adjustive orders as to property - where consideration as to whether husband’s mother has equitable interest in the matrimonial home by way of express trust, resulting truest or constructive trust – discussion of applicable principles – where resumption of advancement in favour of the husband - where husband’s mother has no equitable interest – where exclusion from consideration various debts of the husband – where consideration of the parties contributions – where consideration of relevant s75(2) factors. |
| Conveyancing Act 1919 (NSW) s 23C Family Law Act 1975 (Cth) ss 75(2), 79 |
| Baumgartner v Baumgartner (1987) 164 CLR 137 |
| APPLICANT: | Ms Atuk |
| 1st RESPONDENT: | Mr Atuk |
| 2nd RESPONDENT: | Ms B Atuk |
| FILE NUMBER: | PAC | 4209 | of | 2014 |
| DATE DELIVERED: | 24 March 2016 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 23, 24 and 25 February 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Dura |
| SOLICITOR FOR THE APPLICANT: | McAuley Hawach Lawyers |
| COUNSEL FOR THE 1ST RESPONDENT: | Ms Friedlander |
| SOLICITOR FOR THE 1ST RESPONDENT: | Atila Lawyers |
| COUNSEL FOR THE 2ND RESPONDENT: | Ms Snelling |
| SOLICITOR FOR THE 2ND RESPONDENT: | Edrem Hussein Solicitor |
Orders
That the husband and wife do all things necessary to authorise and direct that controlled monies presently held on trust for them be paid as follows:
(a) As to $254,194 together with pro rata interest accrued on that sum to the wife; and
(b) As to balance then remaining to the husband.
That any application for costs be by way of application in a case supported by affidavit filed within one month from this date.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Atuk & Atuk and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 4209 of 2014
| Ms Atuk |
Applicant
And
| Mr Atuk and Ms B Atuk |
Respondents
REASONS FOR JUDGMENT
A contribution to the cost of the purchase of what was to become the matrimonial home by the husband’s parents has complicated the question…
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- Case
- [2016] FamCA 179
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was how to fairly allocate the controlled monies between the parties. This involved considering the existing trust arrangements and the respective entitlements of the husband and wife to those funds.
Foster J ordered that the controlled monies held on trust be divided. Specifically, the wife was to receive $254,194, along with any pro rata interest accrued on that sum. The remaining balance of the controlled monies was to be paid to the husband. The court also stipulated that any applications for costs were to be made by way of a formal application supported by affidavit, to be filed within one month of the date of the order.
Orders
Orders of the court
1.
That the husband and wife do all things necessary to authorise and direct that controlled monies presently held on trust for them be paid as follows:
(a) As to $254,194 together with pro rata interest accrued on that sum to the wife; and
(b) As to balance then remaining to the husband.
2.
That any application for costs be by way of application in a case supported by affidavit filed within one month from this date.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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